Citation Nr: 0206060
Decision Date: 06/10/02 Archive Date: 06/20/02
DOCKET NO. 97-31 131 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to a rating in excess of 30 percent for the
service-connected bilateral varicose veins prior to January
12, 1998.
2. Entitlement to an increased rating for varicose veins of
the right lower extremity, currently rated 20 percent
disabling, from January 12, 1998.
3. Entitlement to an increased rating for varicose veins of
the left lower extremity, currently rated 20 percent
disabling, from January 12, 1998.
4. Entitlement to an increased rating for dermatophytosis
and onychomycosis of both feet, currently rated 10 percent
disabling.
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Schechter, Counsel
INTRODUCTION
The veteran served on active duty from September 1952 to
September 1956.
The appeal arises from the September 1996 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina, denying an increased
disability rating from the 30 percent assigned for bilateral
varicose veins, and also denying an increased rating from the
10 percent assigned for dermatophytosis and onychomycosis.
By a May 1998 Supplemental Statement of the Case, the RO
assigned separate, 20 percent ratings for varicose veins in
each lower extremity, pursuant to revised rating criteria
under Diagnostic Code 7120, effective January 12, 1998.
In the course of appeal, in September 1999, the veteran
testified before a Board member at the RO. A transcript of
that hearing is included within the claims folder. The
hearing conducted in September 1999 was before a Board member
that is no longer with the Board. Accordingly, the veteran
was sent a letter in March 2002 affording him the opportunity
of another hearing before a Board member who would decide his
case. The veteran was afforded 30 days to reply to the
offer, but did not respond within that time.
In March 2000 the Board remanded the case for additional
development. That development having been completed, the
case is now returned to the Board.
FINDINGS OF FACT
1. For the period prior to January 12, 1998, the veteran's
bilateral varicose veins were not manifested by severe
varicosities. Symptoms of severe varicosities not present
included superficial veins above and below the knee ranging
above two centimeters in diameter with involvement of the
long saphenous veins, marked distortion and sacculation with
edema, and episodes of ulceration.
2. For the period following January 12, 1998, severe
varicose veins were still not present in either lower
extremity. Severe symptoms not present included superficial
veins above and below the knee ranging above two centimeters
in diameter with involvement of the long saphenous veins,
marked distortion and sacculation with edema, and episodes of
ulceration.
3. For the period following January 12, 1998, the veteran's
varicose veins of the right lower extremity were not
manifested by any significant persistent edema.
4. For the period following January 12, 1998, the veteran's
varicose veins of the left lower extremity were not
manifested by any significant persistent edema.
5. The veteran's dermatophytosis and onychomycosis of the
feet bilaterally are not characterized by constant exudation
or itching with extensive lesions or marked disfigurement.
CONCLUSIONS OF LAW
1. The requirements for an increase above the assigned 30
percent rating for bilateral varicose veins under the prior
diagnostic code for that disorder, for the period prior to
January 12, 1998, as well as for the period beginning January
12, 1998, are not met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. § 4.104, Diagnostic Code 7120, as in effect
prior to January 12, 1998.
2. The requirements for an increased rating for right lower
extremity varicose veins, rated 20 percent disabling, for the
period beginning January 12, 1998, are not met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991 & Supp 2001); 38 C.F.R. § 4.104,
Diagnostic Code 7120 (2001).
3. The requirements for an increased rating for left lower
extremity varicose veins, rated 20 percent disabling, for the
period beginning January 12, 1998, are not met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991 & Supp 2001); 38 C.F.R. § 4.104,
Diagnostic Code 7120 (2001).
4. The requirements for an increased rating for bilateral
dermatophytosis and onychomycosis of the feet, rated 10
percent disabling, are not met. 38 U.S.C.A. §§ 1155, 5107
(West 1991 & Supp 2001); 38 C.F.R. § 4.118, Diagnostic Codes
7806, 7813 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The entire medical record contains no findings that the
varicose veins of either lower extremity had deep circulation
involvement.
The medical records throughout the 1990's show the veteran's
complaints of some pain in the lower extremities with
exertion. However, none of the medical records show
ulcerations of the lower extremities. VA outpatient
treatments have included findings of dry skin or skin
discoloration in the lower extremities. There are no medical
findings of grossly enlarged greater saphenous veins.
In October 1994 lower extremity venous ultrasound studies
were conducted to asses the presence of any deep venous
involvement. The examiner assessed normal bilateral lower
extremity deep venous ultrasound, with no evidence of deep
venous thrombosis within imaged veins in either lower
extremity.
In January 1995 the veteran underwent four-vein coronary
artery bypass grafting to alleviate severe arteriosclerotic
heart disease with cardiac enlargement. Bilateral great
saphenous vein harvesting was used for this surgery.
In January 1997 the veteran underwent EMG (electromyography)
testing and nerve conduction velocities evaluation. The
veteran's primary complaint was of stocking-distribution
dysesthesias of both legs, more so on the right. He also
complained that he had occasional numbness in the hands, and
that the dysesthesias were worse with walking and relieved
with rest. He also complained of severe dysesthesias which
awoke him at night. He reported being unable to walk more
than an hour due to pain. The examiner noted that in the
past year he had a vascular evaluation showing good arm and
ankle indices. On examination, the veteran had a wide-based
gait and a slight limp on the right. There were severe
dyvascular neurotropic changes in the distal legs, and marked
intrinsic muscle atrophy and foot deformities. There was a
decrease in pinprick sensation over all of both lower
extremities in patchy distributions. The veteran also had
severe position sensory impairment. Deep tendon reflexes
were 2+ at the knees and zero at the ankles, and dorsalis
pedis pulses were 2+ at both feet. There was mild weakness
of the right peroneal muscles. Results of testing were
consistent with peripheral polyneuropathy of the lower
extremities of unknown etiology.
At a September 1997 VA neurology follow-up, the veteran
complained, in pertinent part, of right leg pain and
swelling. The examiner assessed, in pertinent part,
peripheral neuropathy.
At a February 1998 VA examination, the veteran's history was
noted of bilateral varicose veins since service. The veteran
reported that studies had shown normal circulation in the
legs. He complained of pins and needles sensation in the
calf area bilaterally with intermittent cramps, worse in the
past two years. He also reported a dry skin rash present for
many years, treated with skin lotion. He reported having
tried to wear stockings but finding that these caused
discomfort behind the knees. Upon examination, there were
palpable tortuous varicosities in the posterior bilateral
popliteal areas, right worse than left, and superficial
varicosities from the lower legs and over the feet. There
was also stasis dermatitis of the bilateral lower legs and
feet, right a little worse than left. The examiner diagnosed
bilateral varicose veins.
At the February 1998 VA examination, the veteran's history
was also noted of fungal infection of the soles of the feet
since 1953 in service. The veteran reported a having used an
ointment in the past for the fungal infection. He stated
that he seldom had fungus between his toes. For the past
five or six years he also had discoloration and distortion of
the toenails, with no special treatment and no symptoms from
the toenails, with no itching or other complaint recently.
Examination of the feet revealed mild scaling on the soles of
the feet, and scaling to a slight degree between the toes.
The toenails bilaterally had whitish discoloration and
distortion. The skin of the feet was otherwise within normal
limits, with no scars present. The examiner diagnosed, in
pertinent part, tinea pedis and unguis (dermatophytosis and
onychomycosis).
At a September 1999 hearing before a Board member sitting at
the RO, the veteran testified that he was unable to work due
to his varicose veins, because he had cramps and swelling in
his calves, ankles and feet, and could not stand much over 30
to 50 minutes at a time without having to sit down. He
testified that he also had a little bit of swelling in the
knees. He added that he had shooting pains in his legs
nearly all the time, with the sensation of needles or bee
stings. He added that his feet and toes became partially
numb if he sat still for a time. He testified that he also
had some areas of varicose veins above the right knee. He
testified that the varicose veins were tender to touch most
of the time. He testified that he always had ulcerations in
different parts of his legs, and when they healed it felt as
though the pain penetrated through the leg. He testified
that he was currently taking a special medication plus
aspirin, both for circulation. He added that he had a
medicated salve that was prescribed by a foot doctor, and
that he wore support hose most of the time. He testified
that he also had to wear special shoes with very thick,
cushioned soles and Velcro. He explained that if he were to
loosen the Velcro on these shoes the feet would begin to
swell. He added that he also had difficulty sleeping due to
associated cramps, which caused him to get only three to four
hours sleep per night. He explained that he had to get up at
night and walk around to get rid of these cramps. He added
that most of the time he had to sit down and prop up his feet
until the pain went away. He testified that he had his
varicose veins stripped in both legs once in January 1995.
However, he added that the surgery did not help his legs, and
he still had varicose veins, though the surgery did improve
his legs' appearance.
Also at the hearing, regarding his fingernails and toenails,
he testified that they chip off very easily, and he must keep
them clipped because they hurt. He added that he has them
cut at the VA hospital in Asheville.
At the hearing he also testified that he had a skin disorder
consisting of little blisters, with flaking and little sores
and areas of discoloration and itching. He testified that
the skin disorder usually started just below the knees and
extended all the way to both feet. He testified that a
podiatrist trimmed and scraped off areas and applied a
medication, and also provided salves for him to rub on
affected areas. He testified that he went to the podiatrist
every three months or more frequently, as situations
required. He explained that he developed water blisters on
his feet quite often. He added that he had disfigurement on
his shins and extending down to his toes.
At a January 2000 VA outpatient treatment record wherein the
veteran complained of constant cramping in the legs,
especially at night, with pain a "10" many times, extending
from the calves up to the groin.
Records underlying a grant of Social Security disability
benefits were added to the claims folder in May 2000.
Debilitating diseases were noted to include chronic ischemic
heart disease with angina, and mood disorders.
At a June 2000 VA examination of the veteran for his varicose
veins by a general surgeon, the veteran complained of vague
pains in both legs, and added that they felt tight at times.
The veteran reported that he had definitely not had vein
stripping operations. The examiner reviewed the claims
folder and did not note any stripping procedure within the
record. The veteran also reported that in the past he had
various physical examinations, MRI's, and ultrasound
examinations, revealing that he did not have deep vein
problems or arterial problems in his lower extremities. The
examiner noted a history of coronary artery bypass graft
(CABG) with bilateral long saphenous vein harvesting, with
corresponding incisions observed on examination. The vein
harvesting wounds were healed without complications. The
examiner observed very few varicose veins, and these veins
were two to three millimeters in diameter in most cases, with
the largest not more than 5 millimeters in diameter. The
veteran's saphenous veins were prominent but they were within
normal limits and were not varicosed. There was mild
bilateral stasis discoloration of the lower tibia regions,
which the examiner noted was frequently but not necessarily
associated with varicose veins. There was no evidence
whatsoever of deep vein thrombosis in either lower extremity.
The veteran estimated that he could walk several miles on
level ground. There was no objective evidence of significant
swelling in the lower extremities. The examiner provided
photographs of the veteran's legs from several angles, and
these are included in the claims folder. The examiner
diagnosed minimal varicose veins in both lower extremities
without significant complications.
Also in June 2000, the veteran underwent VA examination by a
dermatologist. The dermatologist reviewed the claims folder
and addressed both the veteran's fungal infection of the feet
and nails, and his bilateral varicose veins. The veteran
complained of significant pain in his legs, particularly the
right leg, and he attributed this pain to his varicose veins.
He also complained that the skin on his lower extremities was
itchy, flaky, and sometimes irritated. The veteran's history
of bilateral saphenous vein harvesting for a four-vessel
coronary artery bypass graft was noted. A past treatment for
right leg cellulitis was also noted. The veteran did not
wear support stockings to the examination. On examination,
the dermatologist noted significant stasis pigmentation in
the left lower leg, with no evidence of ulceration or
induration, but with 1+ pitting edema. The left foot showed
distal dystrophy. The right foot showed changes similar to
those of the left foot, including stasis pigmentation
overlying scaling. Both feet showed no scaling in the
interdigital spaces to suggest active tinea pedis. The right
lower extremity also showed 1+ pitting edema. There were
superficial, dilated veins beginning in the groin. The
dermatologist noted that it was beyond the scope of the
examination to measure the diameter of the veins, but she
nonetheless estimated with a ruler that the diameter of the
veins was between four and five millimeters. There was some
tenderness to palpation in the area of these dilated veins,
but there was no ulceration or significant induration. The
dermatologist diagnosed moderately severe varicose veins,
with the right leg more severe due to the more extensive past
saphenous vein harvesting from the left lower extremity. She
also diagnosed stasis dermatitis secondary to varicose veins,
onychomycosis of the toenails, and no tinea pedis found on
examination.
A further VA medical opinion was obtained in January 2001
from a third VA physician, to resolve the discrepancy between
the June 2000 examination opinions of the VA general surgeon
and the VA dermatologist regarding the severity of the
veteran's bilateral lower extremity varicose veins. The
third physician reviewed the two June 2000 VA examination
reports as well as the claims folder. The third physician
noted that the physical findings of the veteran's varicose
veins made by the general surgeon and the dermatologist were
essentially the same, with only the opinions as to severity
being substantially dissimilar. The general surgeon had
assessed that the veteran had bilateral varicose veins of
minimal severity, whereas the dermatologist assessed
bilateral varicose veins of moderately severe severity. The
third physician noted in particular the clinical findings of
minimal edema and no evidence of significant stasis changes
in either lower extremity. The third examiner also noted
that the general surgeon's observations were based on many
years of experience treating varicose veins. The third
examiner concluded, based on the observed limited extent of
the varicose veins and the significant experience of the
general surgeon, that the general surgeon was correct in
assessing that the bilateral varicose veins were of minimal
severity.
Recent VA outpatient treatment records include issuance of
below-the-knee Carolon stockings for both lower extremities
during a visit in August 2001, in response in part to the
veteran's complaints of leg pain and swelling at night. At a
treatment one day later, the veteran was noted to be
asymptomatic except for leg swelling. There was no change
upon follow-up in September 2001.
Analysis
Initially, the Board notes that during the pendency of the
veteran's appeal, there has been a significant change in the
law pertaining to veteran's benefits. Specifically, on
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). Among other things, this law
eliminates the concept of a well-grounded claim, redefines
the obligations of VA with respect to its duty-to-assist
obligation, and supercedes the decision of the United States
Court of Appeals for Veterans Claims in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No.
96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order),
which had held that VA cannot assist in the development of a
claim that is not well grounded. This change in the law is
applicable to all claims filed on or after the date of
enactment of the Veterans Claims Assistance Act of 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100
(2000). See also Karnas v. Derwinski, 1 Vet. App. 308
(1991). Because of the change in the law brought about by
the VCAA, a determination is necessary as to the potential
for prejudice to the veteran were the Board to proceed to
consider the merits of the issue presented. See Bernard v.
Brown, 4 Vet. App. 384, 394 (1993).
The veteran was informed of the VA's duties as delineated in
the VCAA in a Supplemental Statement of the Case issued in
November 2001, and the Board finds that such development as
has any reasonable possibility of assisting the veteran in
his appealed claims has been completed. The veteran has not
indicated the existence of relevant treatment or examination
records which would be relevant to his appealed claims and
which have not been requested for association with the claims
folder. Further, development undertaken has resulted in a
medical record which adequately portrays the nature and
extent of the veteran's disabilities for rating purposes
during applicable periods. The veteran has been afforded a
hearing in the course of development of his appeal, as review
below, and his statements and contentions have been
considered in assessing the record for its completeness. The
Board also notes that the RO completed substantially all such
development as was requested by the Board in its March 2000
Remand, including obtaining additional pertinent evidence,
obtaining Social Security Administration records underlying a
grant of Social Security disability benefits, and affording
the veteran VA examinations to ascertain the extent of his
claimed disabilities. The Board finds that VA duties under
the VCAA have been fulfilled.
Under applicable criteria, disability evaluations are
determined by the application of a schedule of ratings based
on average impairment of earning capacity. 38 U.S.C.A. §
1155. In evaluating service-connected disabilities, the VA
attempts to determine the extent to which a service-connected
disability adversely affects the ability of the body to
function under the ordinary conditions of daily life,
including employment. 38 C.F.R. §§ 4.2, 4.10 (2001). Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2001).
The veteran's varicose veins disability is rated under
Diagnostic Code 7120. During the pendency of this appeal,
the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4,
was amended including the criteria for evaluating diseases of
the arteries and veins, effective January 12, 1998. See 62
Fed. Reg. 65207 through 65224 (December 11, 1997). As such,
the rating criteria for varicose veins under Diagnostic Code
7120 changed. See 38 C.F.R. § 4.104, Diagnostic Code 7120
(2001). When a law or regulation changes after a claim has
been filed but before the administrative appeal process has
been concluded, the VA must apply the regulatory version that
is more favorable to the veteran. Karnas v. Derwinski,
1 Vet. App. 308, 312-13 (1991).
The Board in an August 1994 decision, in pertinent part,
denied an increased rating above 30 percent for bilateral
varicose veins, and denied an increased rating for
dermatophytosis and onychomycosis of both feet above 10
percent. As this was prior to the change in the diagnostic
code for varicose veins, the rating assigned was under the
old Diagnostic Code 7120. Under that code, a single rating
was assigned for varicose veins, though they may have been
present in both lower extremities.
By a May 1998 Supplemental Statement of the Case, the RO
applied the revised rating criteria for varicose veins under
Diagnostic Code 7120, and the veteran was granted separate
ratings for his varicose veins in each lower extremity. An
increase was assigned to a 20 percent rating for each lower
extremity for varicose veins, as noted in the Introduction,
above.
Under the provisions of Diagnostic Code 7120 in effect prior
to January 12, 1998, moderate bilateral varicose veins with
varicosities of the superficial veins below the knees, with
symptoms of pain or cramping on exertion, warrant a 10
percent rating. Moderately severe varicosities, involving
the superficial veins above and below the knees, with
varicosities of the long saphenous vein, ranging in size from
1 to 2 centimeters in diameter, with symptoms of pain or
cramping on exertion, with no involvement of deep
circulation, warrant a 30 percent rating. Severe
varicosities, involving superficial veins above and below the
knee with involvement of the long saphenous, ranging over 2
centimeters in diameter, with marked distortion and
sacculation with edema and episodes of ulceration, but
without involvement of the deep circulation, warrant a 50
percent rating. Pronounced varicosities, with findings of a
severe condition with secondary involvement of deep
circulation, as demonstrated by Trendelenburg's and Perthe's
tests, with ulceration and pigmentation, warrant a 60 percent
rating. 38 C.F.R. § 4.104, Diagnostic Code 7120, in effect
prior to January 12, 1998.
Under the criteria of Diagnostic Code 7120 in effect on and
after January 12, 1998, a separate rating is assigned for
varicose veins of each lower extremity. A 10 percent rating
is assigned for varicose veins in a single extremity if there
is intermittent edema of the extremity or aching and fatigue
in the leg after prolonged standing or walking, with symptoms
relieved by elevation of the extremity or compression
hosiery. A 20 percent rating is assigned for varicose veins
in a single extremity if there is persistent edema,
incompletely relieved by elevation of the extremity, with or
without beginning stasis pigmentation or eczema. A 40
percent rating is assigned for varicose veins in a single
extremity if there is persistent edema and stasis
pigmentation or eczema with or without intermittent
ulceration. A 60 percent rating is assigned for varicose
veins in a single extremity if there is persistent edema or
subcutaneous induration, stasis pigmentation or eczema, and
persistent ulceration. A 100 percent rating is assigned for
varicose veins in a single lower extremity if such results in
massive board-like edema with constant pain at rest.
38 C.F.R. § 4.104, Diagnostic Code 7120, in effect on and
after January 12, 1998.
The Board has carefully reviewed the medical record, as
detailed in substantial part in the evidentiary review above,
and concludes that for both the period prior to January 12,
1998, and the period from that date to the present, the
veteran's varicose veins in each lower extremity are minimal
in their extent and only minimally disabling. As the veteran
reported at the January 1997 VA EMG examination and at the
June 2000 examination by a general surgeon, he is able to
walk for an hour or for several miles before being hindered
from further exertion from lower extremity pain. Even if
such lower extremity pain due to varicose veins were the only
impediment to further exertion, without consideration of the
veteran's considerable arteriosclerotic cardiovascular
disease with ischemic heart disease with angina status post
four-vein grafting bypassing three coronary arteries in
January 1995 and bilateral carotid endarterectomy in 1998 and
1999, such pain due to varicose veins preclusive of such
prolonged exertion would not constitute a significantly
disabling condition for rating purposes.
Applying the diagnostic code in effect prior to January 12,
1998, the Board notes that there is not evidence of
significant long saphenous vein involvement, or of large
varicose veins. Largest measures of the varicose veins upon
examinations in recent years were in the 1/2 centimeter (5
millimeter) range, not approaching the 1 to 2 centimeter
diameters for varicose veins which might warrant a 30 percent
rating under the prior code. The sole medical suggestion of
moderately severe varicose veins was made by the VA
dermatologist examining the veteran in June 2000. As noted
above, that conclusion contrasts with that of the June 2000
VA examination by a general surgeon. Also as noted above,
the VA consultation opinion obtained in January 2001 to
resolve the discrepancy favored the opinion of the general
surgeon, noting that the medical findings between the
dermatologist and the surgeon were essentially the same, and
the opinions only differed as to the severity of the varicose
veins. The Board agrees with the conclusion reached in
January 2001, that the severity of the varicose veins was
only minimal, and without significant complications. The
Board relies, as did the January 2001 consultant, on a
careful review of the record as a whole, as well as on the
June 2000 examination opinion informed by the more relevant
experience of the general surgeon in treating varicose veins,
with a concomitant greater understanding of their pathology.
The Board note in that regard that the objective findings as
presented in examinations within recent years do appear to be
those of only a minimal varicose vein disorder in each lower
extremity. There is no involvement of deep circulation,
there are only small varicose veins, and while there was some
stasis pigmentation in the lower legs, there have been no
findings of either ulceration or induration to indicate
greater pathology.
Accordingly, applying the rating criteria then in effect, the
Board finds that the preponderance of the evidence is against
an increased evaluation above the 30 percent assigned for
bilateral varicose veins for the period prior to January 12,
1998. Regarding the period beginning June 12, 1998, under
the old rating criteria, the analysis is the same, and the
Board concludes that a higher evaluation than the equivalent
of a combined 30 percent rating for varicose veins of both
lower extremities is not warranted for this period.
Regarding the new rating criteria, current and recent
findings have included aching pain and fatigue in the lower
extremities with prolonged walking relieved by rest and
elevation of the legs, all of which is consistent with the
criteria for a 10 percent rating for each lower extremity
under the new code. Pitting edema was observed by the VA
dermatologist in June 2000, which is the principal criterion
for assignment of a 20 percent rating under the new code, but
was not observed by the VA general surgeon in June 2000 and
was not noted elsewhere in the medical record. The criteria
for the next higher, 40 percent rating, inclusive of
persistent edema and stasis pigmentation or eczema with or
without intermittent ulceration, may possibly be supported by
the findings of the VA dermatologist in June 2000, since that
examiner identified both pitting edema and stasis
pigmentation as well as some itching or flaking of the skin
of the lower extremities. However, other medical records do
not show such symptoms to any notable degree. The physician
who in January 2001 reviewed the medical records including
the June 2000 examinations by the general surgeon and the
dermatologist, noted that any edema present in the lower
extremities was minimal. The February 1998 VA examiner found
stasis dermatitis in both lower extremities, but noted that
there was no edema present in either lower extremity.
While the Board notes the veteran's complaints at VA
outpatient treatments in 2000 and 2001 of constant cramping
pain in the legs, especially at night, an attribution of
these subjective symptoms to the varicose veins are not
supported by conclusions of the VA surgeon in June 2000 or
the consulting examiner in January 2001. Significantly, upon
August 2001 VA outpatient treatment for complaints of leg
swelling, the examiner attributed the edema to venous
insufficiency, but not to varicose veins in particular. Deep
vein involvement has been consistently ruled out in the
medical record for the veteran's varicose veins.
While the Board notes the veteran's testimony in September
1999 to the effect that he always had ulceration in the legs
with associated pain, the medical record as a whole, with
numerous treatment evaluations with recorded observations of
the lower extremities and several VA examinations over recent
years, records no findings of any ulcerations of the lower
extremities. The veteran also testified to painful cramping
of the legs, with associated loss of sleep, and the need to
walk around to alleviate these cramps. He testified that at
other times he would have to sit and elevate his feet until
the pain disappeared. To the extent that these symptoms may
be attributable to the veteran's observed minimal varicose
veins, and not to other diagnosed disorders, the Board does
not find the veteran's symptoms, as established by recent
medical evaluations, to be so disabling as to equate to a 40
percent evaluation for varicose veins for each lower
extremity. This is particularly the case when examiners have
specifically found that there is no deep venous involvement
associated with the minimal bilateral varicose veins, and the
veteran's level of functioning, including ability to walk
several miles, suggests more limited disability.
Giving greater weight to the objective findings by medical
examiners and the VA surgeon's opinion in June 2000 than to
the veteran's subjective complaints and the VA
dermatologist's opinion in June 2000, the Board concludes
that the preponderance of the evidence is against the
presence of such disability as persistent edema and eczema
attributable to the veteran's varicose veins as would warrant
a next higher, 40 percent evaluation for varicose veins for
either lower extremity under the new rating criteria for the
period from January 12, 1998.
Because the preponderance of the evidence is against the
claims for increased evaluations for bilateral varicose veins
for the period prior to January 12, 1998, and for right and
left lower extremity varicose veins for the period beginning
January 12, 1998, the benefit of the doubt doctrine does not
apply, and the claims must be denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
The veteran's dermatophytosis and onychomycosis of both feet
is appropriately rated under Diagnostic Code 7813, the rating
code for dermatophytosis. As such, the text of 38 C.F.R. §
4.118 informs that the conditions are rated under the
diagnostic criteria for eczema, Diagnostic Code 7806. Under
that code, where the condition is characterized by slight, if
any, exfoliation, exudation or itching, if on a nonexposed
surface or small area, a noncompensable evaluation is
warranted. Where it is characterized by exfoliation,
exudation or itching, if involving an exposed surface or
extensive area, a 10 percent evaluation is warranted. Where
it is characterized by exudation or constant itching,
extensive lesions, or marked disfigurement, a 30 percent
disability evaluation is warranted. Where eczema is shown
with ulceration or extensive exfoliation or crusting, and
systemic or nervous manifestations, or is exceptionally
repugnant, a 50 percent disability evaluation is warranted,
which is the highest schedular evaluation provided under this
diagnostic code. 38 C.F.R. Part 4, Code 7806 (2001).
Recent medical findings for the veteran's dermatophytosis and
onychomycosis of the feet within the claims folder are
consistent with those of the VA dermatologist who examined
him in June 2000. As detailed above, that examiner found
only stasis pigmentation overlying scaling on the feet, with
no interdigital scaling on either foot. At a prior VA
examination in February 1998 dermatophytosis and
onychomycosis were diagnosed, as evidence by whitish
discoloration of the toenails and mild scaling on the soles
of the feet and between the toes. These findings may be
regarded as consistent with slight exfoliation or itching, so
as to warrant a noncompensable evaluation for the veteran's
bilateral dermatophytosis and onychomycosis of the feet. A
more generous interpretation may conclude that because both
feet are involved, this involves an extensive area, so as to
warrant a 10 percent evaluation for the bilateral condition.
However, medical evidence in no way suggests the presence of
constant exudation or itching with extensive lesions or
marked disfigurement, so as to warrant the next higher, 30
percent evaluation for the veteran's dermatophytosis and
onychomycosis of both feet. While the veteran has testified
in September 1999 to numbness of the feet and toes upon
prolonged sitting, and of using medicated salve at times for
his feet, this still presents no suggestion of such severity
of dermatophytosis and onychomycosis as to warrant the next
higher, 30 percent disability rating. Accordingly, the
preponderance of the evidence is against the claim.
Therefore, the benefit-of-the-doubt doctrine does not apply,
and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert
v. Derwinski, 1 Vet.App. 49 (1990).
ORDER
1. Entitlement to an increased rating above the 30 percent
assigned for the period prior to January 12, 1998, for
bilateral varicose veins is denied.
2. Entitlement to an increased rating above the 20 percent
currently assigned for the period beginning January 12, 1998,
for varicose veins of the right lower extremity is denied.
3. Entitlement to an increased rating above the 20 percent
currently assigned for the period beginning January 12, 1998,
for varicose veins of the left lower extremity is denied.
4. Entitlement to an increased evaluation above the 10
percent currently assigned for dermatophytosis and
onychomycosis of both feet is denied.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.